Jurisdiction II Flashcards
What legislation governed contractual disputes prior to Brexit?
Rome I legislation
Rome I was adopted into English law after Brexit, but some areas are excluded and it only applies to contracts entered into before 17 Dec 2009.
What are the steps for determining whose laws apply under contract?
- Have the parties chosen which laws should apply?
- Does the contract relate to articles 4(1)(a) - (h)?
- If the contract does not fall into one of the above, the applicalbe law is the law of the country where the party required to effect performance of the contract had its habitual residence
- Is the claim manifestly more closely connected with another country?
Which areas do not fall under Rome 1?
- contracts entered into before Dec 2009
- carriage contracts
- employment
- consumer
- insurance
How does the parties’ choice affect the applicable law in contracts?
The contract shall be governed by the law chosen by the parties, either expressly or clearly demonstrated by the terms of the contract (Article 3)
This gives parties significant autonomy in determining the governing law.
What is the applicable law for a sale of goods contract?
The applicable law is that of the seller’s habitual residence
This is specified in Articles 4(1)(a) to (h) of the Rome I legislation.
What law applies to contracts relating to land?
The applicable law is that where the land is situated
This is specified in Articles 4(1)(a) to (h) of the Rome I legislation.
In a distribution contract, what law governs?
The applicable law is that of the distributor’s habitual residence
This is specified in Articles 4(1)(a) to (h) of the Rome I legislation.
In a provisions of service contract, which is the applicabe law?
The applicable law is that of the service provider’s habitual residence
This is specified in Articles 4(1)(a) to (h) of the Rome I legislation.
What is meant by ‘Characteristic Performance’ in determining applicable law?
The applicable law is the law of the country where the party required to effect characteristic performance of the contract has its habitual residence.
What happens if the applicable law has not been chosen by the parties?
The court will apply a different country’s law if the contract is manifestly more closely connected with that other country.
What legislation governed most tort disputes prior to Brexit?
Rome II
Rome II was incorporated into English law after Brexit, with some areas excluded and applicable only to events giving rise to damage occurring on or after 10 Jan 2009.
What are the steps for determinnig whose laws apply under tort?
- Have the parties validlychosen which law should apply?
- If no, do C and D habitually reside in the same country? If yes, that country’s laws will govern the dispute.
- If no, the applicable law is the country where the damage occurred
- Is the tort more manifestly more closely connected with another country?
When will Rome II not apply?
- product liability
- unfair competition
- infringement of intellecutal property
- environmental damage
- industrial action
Can parties choose which laws will apply to torts?
Yes. This agreement will take effect if:
- the agreement was entered into after the event
- or the agreement was entered into before the event, IF both parties are pursuing a commercial activity and they freely negotiated the choice of law.
What is the requirement for an effective choice of law if made before the tortious event?
Both parties must be pursuing a commercial activity and freely negotiated the choice of law.
If parties habitually reside in the same country, what laws apply?
The laws of that country apply.
If there is no valid choice of law and the parties do not reside in the same country, which law applies?
The applicable law is that of the country in which the damage occurs.
If parties did not agree on the applicable law, what will the court consider?
The court will apply a different country’s law if the tort is manifestly more closely connected with that other country.
